CHAPTER 3

RESTORATIVE JUSTICE:
PHILOSOPHY, THEORY AND
PRACTICE

3.1. INTRODUCTION

This chapter begins with an overview of restorative justice. It sets out

the definitions and principles of restorative justice. It discusses the myths
and realities of restorative justice from the perspective of Braithwaite
and Daly. The chapter further develops understanding of restorative
justice by introducing a practitioner’s perspective and using this to
further critique Braithwaite’s theory of Reintegrative shaming. This is
achieved by applying Tomkins’ Affect Theory and Nathanson’s Compass of
Shame to Braithwaite’s own understanding of Braithwaite’s Reintegrative
shaming.
By critiquing Braithwaite’s understanding of Reintegrative shaming
through the practitioner’s perspective, the chapter provides a fuller under-
standing of the potential for restorative justice to provide a meaningful
framework of mediation in policy and practice.

3.2. WHY RESTORATIVE JUSTICE?

Like the crime it is supposed to deal with, punishment is nowadays seen

as a chronic problem (Garland, 1999). The renewed interest in restorative
justice in America and in Europe has arisen out of a growing recognition
that a reliance on traditional forms of punishment such as detention and
incarceration is failing to deliver a sense of fairness, satisfaction and

43
44 THE SUSTAINABILITY OF RESTORATIVE JUSTICE

security from the justice system. It can be argued that our criminal justice
system
• Excludes the victim from the system
• Is centrally concerned with punishment
This does not produce fairness or invoke empowerment to either the
victim or the offender. Restorative justice operates within the framework of
the law and is overseen by the courts to ensure that the outcome is reason-
able. It allows the victim and the offender to meet face to face and discuss
the harm they have suffered as a result of the offence. It empowers victims
and offenders and provides them with the opportunity to take action to
restore one another to their pre-offence state.
This gives both parties the opportunity to reintegrate into society with
lower rates of stigmatisation for the offender. An important point to note is
that the offender or offenders are made aware at the beginning of the
restorative event that if they fail to co-operate with the proceedings, they
may be subject to a more adversarial response from the courts. The primary
goal of the restorative justice process is not punishment but making good
the harm done by offending for the victim, the community and the offender.
Offenders have to take responsibility for their actions as a precondition to
addressing the harm that they have caused.
Offenders become aware that a crime is committed, not against an abstrac-
tion, but against someone real, a person like themselves and against their
community, who are directly and indirectly affected by what has happened.
Crime and conflict affect relationships between individuals who are left out-
side the court system altogether by conventional justice. Proceed-ings and
arguments of the restorative process are voluntary for all parties. People are
given the opportunity to partake in mediation, or to accept reparation. The
process is always confidential however; outcomes and agreements can be
made public, depending on the authorisation by participants.

3.3. THE ORIGINS AND MEANING OF

RESTORATIVE JUSTICE

The concept of restorative justice dates back centuries in tribal traditions.

Aboriginal and Native American forms of justice are just two examples of
systems that operate on the basis of restoration and reparation. Maori
tribes in New Zealand have been using the restorative justice model for
Restorative Justice: Philosophy, Theory and Practice 45

hundreds of years to deal with crimes and offences committed against

members of the same tribe. The process operates as follows, if a member of
the tribe commits an offence or inflicts harm on another member of the
tribe they are required to meet with their victim face to face, in front of
other members of the tribe, discuss the incident and offer some form of
reparation for the harm that they have caused (Consedine, 1995).
Restorative justice is a distinct philosophy of justice, which focuses on
making amends for harm done (Edgar & Newell, 2006; Wright, 1999). The
fundamental principle of this philosophy is that when a person has harmed
another, the most useful response is to try to repair the harm (Consedine,
1995; Johnstone & Van Ness, 2007). Restorative justice stretches far
beyond ideas about criminal justice to encompass civil renewal, individual
responsibility, conflict resolution, empowerment, shaming and forgiveness
(Braithwaite, 1999; Hudson, 2003).
While the term ‘restorative justice’ in itself is relatively recent, when
reviewed in the context of its historical development, it becomes apparent
that key terms of restitution, reparation, compensation, reconciliation,
atonement, redress, community service, mediation, are all used interchange-
ably in the literature (Weitekamp & Kerner, 2002). These key terms have
collectively been united under the umbrella of what is now known as
restorative justice.
Restorative justice operates within and outside of the criminal justice
process (Morris & Maxwell, 2002; Roche, 2004). While it may have only
come to prominence in Western societies in the 1980s, the concept is far
from new and can be linked to traditions of the Celts, Maori, Samoans,
other indigenous peoples, as well as having roots in various religious com-
munities (Consedine, 1995; Gelsthorpe & Morris, 2002).
For some commentators, it is not a new form of justice but rather dates
back and returns society to pre-modern forms of justice (Zehr, 1990). In
this context, restorative justice is seen as timeless, with the modern criminal
justice system as an abnormal development requiring explanation
(Crawford & Newburn, 2002; Daly, 2002; Johnstone, 2003). The modern
state is considered to have ‘stolen the conflict’ from communities, victims
and offenders, and in the process buried longstanding traditions of restora-
tive justice (Christie, 1977).
Some go as far to suggest that restorative justice has been the dominant
model of criminal justice throughout most of human history for all of the
world’s people (Braithwaite, 1998).
Furthermore, its re-emergence in recent decades is connected to a num-
ber of social, political and cultural changes; for example, the re-articulation
46 THE SUSTAINABILITY OF RESTORATIVE JUSTICE

of rights and responsibilities between the state and civil society particularly
inspired by neo-liberal assaults on the welfare state, and the increasing
salience given to victims of crime (Crawford & Newburn, 2003).
According to advocates, the revival of restorative justice has been borne
out of a critique of traditional criminal justice (Johnstone, 2002). They
claim that it offers a distinct and unique response to crime that can clearly
be differentiated from retributive and rehabilitative responses (the latter
may show some similarities to restorative concerns but their purpose is
quite different) (Weitekamp, 1999).
According to Walgrave (1994), the retributive response to crime takes
place in a societal context of state power, focuses on the offence, inflicts
harm, seeks just deserts and ignores the victim. The rehabilitative response
to crime takes place in the context of a welfare state, focuses on the offen-
der, provides treatment to him or her, seeks conforming behaviour and also
ignores the victim.
Restorative justice, on the other hand takes place in the societal context
of empowering the victim, focuses on losses, repairs the damage inflicted,
seeks satisfied parties and views the victim as the central person of the whole
process (Hoyle & Young, 2002; Hudson, 2003). It is the most significant
development in criminal justice and criminology over the past two decades
(Bazemore & Schiff, 2005; Crawford & Newburn, 2003; Hudson, 2003).
According to some commentators, restorative justice became the global
social movement for criminal justice reform in the 1990s and into the new
millennium (Braithwaite, 1998). It is most commonly characterised by what
it is an alternative to, and gives new focus to the concept of informal justice
(Braithwaite, 2002; Roche, 2004). Broadly speaking, its goal is to transform
the way in which contemporary societies view and respond to crime and
associated forms of problematic behaviour (Johnstone & Van Ness, 2007).
For example, juvenile justice as alluded to earlier can be regarded as
swinging back and forth during the past century between a justice and a
welfare model, between retribution and rehabilitation (Goldson, 2006;
Muncie, 2002).
Restorative justice is heralded as a long overdue third model or a new
‘lens’ in which to perceive crime (Zehr, 1995) a means of avoiding the
sway and heading more consistently in a new direction, at the same time
enlisting the support of both liberal politicians who advocate the welfare
model and conservative politicians who propose the justice model (Daly,
2002; Braithwaite, 2002).
The appeal of restorative justice to liberals is a less punitive justice
system. The appeal to conservatives is that restorative justice strongly
Restorative Justice: Philosophy, Theory and Practice 47

emphasises victim empowerment, empowers families and communities,

takes account of home responsibilities and saves money as a result of the
minimum use of punishment. Specifically, it seeks to replace existing
professionalised systems of punitive justice and control with community-
based reparative justice and moralising social control (Johnstone & Van
Ness, 2007).

3.4. THEORY/PRINCIPLES OF RESTORATIVE

JUSTICE
Tony Marshall, of the Restorative Justice Consortium, has defined restora-
tive justice as the following:

A process whereby all parties with a stake in a particular offence come together to
resolve collectively how to deal with the aftermath of the offence and its implications
for the future. (1999, p. 18)

Marshall contends that restorative justice should aim to achieve the

following six outcomes (Marshall, 1999, p. 18):

• Denunciating crime
• Reforming individual offenders
• Preventing crime
• Helping victim
• Making good the suffering caused by crime
• Keeping the costs of administering justice to a minimum

Restorative justice essentially views the criminal conflict foremost as a

breakdown in relationships between individuals and only secondly, as a
violation of the law (Zehr, 1990). Its seeks to repair the relationship
through a healing process designed to meet the ends of the victims on the
one hand, for example, elimination of the fear of re-victimisation, and on
the other hand, reintegration of the offender into society.
The traditional retributive focus of the formal criminal justice system,
incorporating the notions of punishment and ‘just deserts’, are not the
goals of the restorative justice process and are viewed as ineffective, unde-
sirable and counterproductive to prevent the offender from re-offending.
The restorative justice process looks to the needs of parties: reparation
of injuries, relationships and physical damage to the victim as well as
48 THE SUSTAINABILITY OF RESTORATIVE JUSTICE

attending to the needs of the offender who brought about the crime in the
first place.
Restorative justice in very simple terms is another way of dealing with
offenders. Many see it as an alternative to traditional approaches. The
central focus of restorative justice is the harm caused by the offence. The
offender has to redress this balance voluntarily. This is achieved by
acknowledging the harm caused and by righting the wrong by engaging in
reparation. In the current retributive system, crime is considered a violation
against the state. The aim of justice will be to establish guilt and hand out
a punishment. It is an adversarial system with the central component of
punishment. Restorative justice sees crime as a violation on people and
their relationships. The aim of restorative justice, therefore, is to recognise
the harm caused to victims, the community and offenders. It endeavours to
repair the damage caused. The paradigms of criminal justice processes,
restorative justice versus retributive justice put forward by Zehr (1990),
provides an in-depth comparison of what both processes stand for in
simple terms.

3.5. DEFINITIONS AND PRINCIPLES

Restorative justice is a process whereby all of the parties with a stake in a particular
offence come together to resolve collectively how to deal with the aftermath of the offence
and its implications for the future. (Marshall, 1996, p. 37)

This proposed definition of restorative justice by Tony Marshall is increas-

ingly used internationally (Morris & Maxwell, 2002).
While it is helpful, it fails to specify who or what is restored and to
define core values of restorative justice (Braithwaite, 1999). Some argue
that it is too restrictive (Bazemore & Walgrave, 1999; McCold, 2000).
Others suggest that restorative justice embraces a creative range of
potential solutions with one of its main hopes being that there is reconcilia-
tion, rapprochement or greater mutual understanding between the parties
(Johnstone & Van Ness, 2007).
The reintegration of the offenders into the community is also a desired
outcome. A further definition which states the aims of restorative justice
clearly as well as describing the process by which they are to be achieved is
Van Ness’s explanation that the purpose of restorative justice is ‘the
restoration into safe communities of victims and offenders who have
resolved their conflicts’ (Van Ness, 1993, p. 258).
Restorative Justice: Philosophy, Theory and Practice 49

Overall, in terms of what is to be restored, Braithwaite states whatever

dimensions matter to the victims, offenders and communities affected by the
crime (1999, p. 6).
The collective concern of all of those with an interest in restorative
justice is to provide a robust definition of what restorative justice and its
central components are in order to make it possible to measure empirically
and to clarify the central values underlying restorative practices against
counter claims (Crawford & Newburn, 2003).
While there is considerable debate in the literature regarding the nature
of restorative justice and Marshall’s definition, it does identify some of the
main principles of restorative justice: the notion of stakeholder inclusion,
the importance of participatory and deliberative processes and the empha-
sis upon restorative outcomes.
Firstly, the notion of stakeholders seeks to recognise that crime is more
than an offence against the state as stakeholders, and they are considered
to be more directly affected by acts of harm rather than the state (Hudson,
2003). Stakeholders include not only the victim and the offender but also
the families and supporters of each and other members of their respective
communities who may be affected or who may be able to contribute to the
prevention of further offending (Roche, 2004).
The practical aim of restorative justice is to consider the impact on
victims and others involved, be they family, friends, peers or members of
the wider community (Sharpe, 1998). It also endeavours to explore the
impact upon the community and implicitly seeks to limit the role of legal
professionals. Advocating Christie’s call, ‘let’s have as few experts as we
dare’ (1977, p. 12), restorative justice prefers to empower victims, offenders,
family members and others as partners in the justice process.
According to Crawford and Newburn (2003, p. 22) these are the new
stakeholders of a revised vision of justice, which seeks to recognise and bring
into play, through their active involvement, a broader conceptualisation of the
appropriate key actors in dispute processing and resolution. Therefore
restorative justice relocates authority in responses to crime away from the
state to stakeholders themselves who are afforded the maximum degree of
control over deliberation and decision-making (Hudson, 2003).
In the case of the Republic of Ireland, the relocation of authority from
the state to the community is an issue, which the empirical findings will
critically examine.
Secondly, the importance of participatory and deliberative processes
emphasises the value of participation, empowerment, communication,
dialogue and negotiated agreements. Informal environments in which
50 THE SUSTAINABILITY OF RESTORATIVE JUSTICE

stakeholders are comfortable are conducive to good communication

between parties. At the heart of the restorative justice philosophy lies a con-
cern with a particular mode of participatory conflict resolution that centres
on consensus building through a problem-solving approach to crime that is
grounded in local knowledge and local capacity (Johnstone & Van Ness,
2007).
Restorative processes emphasise the importance of offender and victim
participation choice and control in the process of face to face encounters
and decision-making.
Restoring a sense of control to the central parties is a key aspect of the
restorative process (Wright, 1999).
One intended consequence of party-centred control and participation is
to restore responsibility to participants, in the belief that this will encourage
offenders to be more accountable for their actions and to encourage others
to take responsibility for ensuring the successful implementation of any
agreement reached (Maxwell & Morris, 2002). Discussing the consequences
of offences is seen to be a more powerful way of communicating the gravity
of their offence to offenders in a way that brings home the impact on
victims (Morris, 2002).
It is believed that a process that treats people with respect and encourages
their empowerment is more legitimate in the eyes of those participating and,
furthermore, that it encourages a general respect for the law and under-
standing of the consequences of individual action on others (McCold, 2001).
Similarly, the primary research will seek to examine if Irish restorative
justice programmes encourage participation, empowerment, communication,
dialogue and negotiated agreements between parties.
Thirdly, restorative justice maintains and appeals to particular restora-
tive outcomes or resolutions. Repairing the harm caused by the crime to all
of those directly and indirectly affected is the ultimate aim of restorative
interventions. Reparation may be symbolic as well as material, the inten-
tion being that outcomes should seek to heal relationships (Braithwaite,
1998).
In practice, these often include verbal or written apologies, compensa-
tion or direct reparation to the victim for the harm and indirect repara-
tion to the community, which may take a variety of forms (Hudson,
2003).
It is suggested that restorative outcomes should be flexible and party-
centred as well as problem-oriented (Johnstone, 2002). The outcomes of
restorative justice processes will be a key area of research analysis in the
context of the Republic of Ireland. In addition, restorative justice can be
Restorative Justice: Philosophy, Theory and Practice 51

used to settle community disputes. One area where this may be possible is
in the area of ethnic disputes and this will examined in later sections of this
chapter.

3.6. BRAITHWAITE AND DALY: MYTHS AND

REALITIES OF RESTORATIVE JUSTICE

Braithwaite contends that restorative justice involves a different way of

thinking about traditional notions such as deterrence, rehabilitation,
incapacitation and crime prevention. He believes that restorative justice is
about restoring victims; a more victim-centred criminal justice system
as well as restoring offenders and the community (Braithwaite cited in
Johnstone, 2003, p. 86).
He states that the task of restorative justice is to confront the shame of
the offender, make them responsible for the bad consequences suffered by
the victim and apologise with sincerity, essentially it aims to restore dignity
for offenders.
Braithwaite (1989) states for victims, restorative justice aims to restore
social support through institutionalising the gathering around of friends
during a time of crisis.
He believes that by removing the sense of insecurity and disempower-
ment of both victims and offenders, through a process of deliberative
democracy, society can design institutions so that concerns about issues
like unemployment have a channel through which they can flow from dis-
cussions about local injustices up into national economic policy making
debate (Braithwaite cited in Johnstone, 2003).
Braithwaite doesn’t advocate that society abolishes the concept of crime
or the key elements of state criminal justice systems which have been globa-
lised, rather he believes in shifting power from them to civil society, keeping
key elements of state systems but shifting power away from central institu-
tions and checking power that remains by deliberative democracy from
below, for example self-regulatory practice which restorative justice enables
(Braithwaite cited in Tonry, 1998).
Braithwaite has been at the forefront in the study of restorative justice,
especially through the means of his concept of reintegrative shaming. He
contends that there are many reasons for the criminal justice system failing
in its efforts to control levels of crime such as the stigmatisation of crim-
inals. Braithwaite’s theory of Reintegrative shaming claims that it is the
52 THE SUSTAINABILITY OF RESTORATIVE JUSTICE

societies with the lowest crime rates that have the ability to shame criminal
conduct most effectively (Braithwaite in Johnstone, 2003).
He believes that there is an important difference between shaming a
person and stigmatising them.
For Braithwaite, reintegrative shaming prevents crime, while stigmatisa-
tion is a form of shaming which makes crime problems worse. Reintegrative
shaming means disapproving of the wrongness of the act, while at the same
time treating the person who committed the act as essentially a good human
being. Reintegrative shaming in summary relates to a strong disapproval of
the act but conveying and articulating a response that is seen to respect the
offender (Braithwaite, 1989).
Daly (2003), in her article Restorative Justice: The Real Story, addresses
the problem of defining restorative justice. She states that this is not easily
done as it encompasses a variety of practices at different stages of the crim-
inal justice process. She also points out that in most legal issues involving
individual criminal matters, restorative justice practices have only been
applied to those offenders who have admitted to an offence. Therefore, it
deals with the penalty phase of the criminal process for admitted offenders,
not the fact-finding phase. Daly’s work differs greatly from Braithwaite’s
largely due to the fact that she deals with myths of restorative justice and,
furthermore, she uses data obtained from observing conferences to achieve
her objective.
Daly (2000, 2002, 2003, 2005) discovered that participants engaged in
a flexible incorporation of multiple justice aims which included some
elements of retributive justice, censure for past offences, some elements of
rehabilitative justice in the form of asking questions such as what could be
done to encourage future law-abiding behaviour and some elements of
restorative justice, such as how the offender make up for what they had
done to the victim (Daly cited in Johnstone, 2003).
As a result of her findings, Daly was provoked to consider the relation-
ship between restorative and retributive justice and the role of punishment
in restorative justice. She states that because the terms ‘retributive justice’
and ‘restorative justice’ have such strong meanings and are largely used by
advocates as metaphors for the bad and the good justice, perhaps they
should be analysed in a way which explains current and future justice prac-
tices (Daly cited in Johnstone, 2003).
Daly does not concur that the practices of restorative justice, which
are in operation in some jurisdictions are replicas of pre-modern forms
of justice, rather they are new justice practices, which have many bits of
‘old’ in them. By the old justice, Daly refers to modern practices of
Restorative Justice: Philosophy, Theory and Practice 53

courthouse justice which permit no interaction between victim and offen-

der, where legal actors and other experts do the talking and make deci-
sions, whose stated aim is to punish or at times reform an offender.
By the new justice, she refers to a variety of recent practices which bring
victims and offenders as well as others together in a process where both lay
and legal actors make decisions, whose aim is to repair harm for victims,
offenders and other members of the ‘community’ in ways that matter to
them.
Therefore, as Braithwaite and Petit contend, restorative justice has a
better chance than ‘just deserts’ of being made equally available to both
rich and poor (Braithwaite & Petit, 1990).
The story of Sam (an offender), which both authors refer to in their
work, depicts the practice of restorative justice in operation. In the
alienated urban context where the existence of a community is not apparent
in a satisfactory way, a criminal justice system aimed at restoration can
construct a community of care around a specific victim or offender. Both
state that it is the empowerment principle of restorative justice that makes
this possible. It is a form of empowerment, which permits process control
(Daly, Braithwaite cited in Johnstone, 2003).
Braithwaite (1989) further states that restorative justice must be a cultu-
rally diverse social movement that accommodates a rich plurality of strate-
gies in pursuit of the truths it holds to be universal. We can achieve this he
believes by carrying out a culturally specific investigation into how to save
and revive restorative justice practices that remain in all societies and how
to transform state criminal justice by making it both more restorative and
by rendering such abuses of power less likely through restorative justice.
Daly agrees with Braithwaite’s ideal of a culturally diverse social move-
ment and states that the real story of restorative justice offers hope not
only for a better way to do justice but also for strengthening mechanisms
of informal social control and as a means to minimise reliance on formal
aspects of social control, primarily the machinery and institutions of
criminal justice.

3.7. RESTORATIVE PHILOSOPHY ‘IN THE PUBLIC

INTEREST’

In the past, the formal criminal justice system has been overly focused on
what O’Mahony (2001, p. 11) calls, ‘public interest’ which effectively
54 THE SUSTAINABILITY OF RESTORATIVE JUSTICE

amounted to the state overriding the interests of the other stakeholders.

Restorative justice on the other hand is also perceived as a philosophy that
embraces a wide range of human emotions including healing, mediation,
compassion, forgiveness, mercy, reconciliation as well as sanction when
appropriate (Consedine, 1995, p. 183).
According to Consedine (1995), the restorative approach to crime came
about following mounting concern over the exclusion of the victim from
the criminal justice system and also through the belief that there was a lack
of participation by the offender. He believes that the restorative justice
process recognises a worldview that says we are all interconnected and that
what we do, be it for good or evil, has an impact on others.
Restorative justice in Consedine’s view offers a process whereby those
affected by criminal behaviour, be they victims, offenders, the families
involved or the wider community, all have a part to play in resolving the
issues that flow from the offending.
Under restorative justice, victims and offenders assume central roles
and the state takes a back seat. The process does not focus on vengeance
and punishment but seeks to heal both the community and the individuals
involved.
This is achieved by a process that puts the notion of reparation, not pun-
ishment, at its centre (Consedine, 1995). Essentially, this understanding of
restorative justice philosophy is based on three beliefs that crime results in
harm to victims, offenders and communities. Not only government, but
victims, offenders and communities should be actively involved in the
criminal justice process. In promoting justice, the government should be
responsible for preserving order (Van Ness, 1996).
These general beliefs lead to a number of common elements among
restorative justice programmes. The key features of the concept of restora-
tive justice can therefore be outlined as follows:
It is a process whereby parties with a stake in a specific offence resolve collectively how
to deal with the aftermath of the offence and its implications for the future. It is a
problem-solving approach to crime, which involves the parties themselves, and the
community generally in an active relationship with statutory agencies.

It is not a particular practice, but a set of principles, which may guide the general
practice of any agency or group in relation to crime. It seeks to balance the concerns of
the victim and the community with the need to reintegrate the offender into society. It
seeks to assist recovery of the victim and enable all parties with a stake in the justice
process to participate in it. Restorative Justice is not a movement alongside or against
the current criminal justice system but must be seen as a fully integrated approach with
the existing criminal justice system in order to modify the foundations of the system
itself. (Aerston, 1997, p. 14)
Restorative Justice: Philosophy, Theory and Practice 55

This does not necessarily produce fairness or invoke empowerment to

either the victim or the offender. Restorative justice operates within the
framework of the law and is overseen by the courts to ensure that the out-
come is reasonable. It allows the victim and the offender to meet face to
face and discuss the harm they have suffered as a result of the offence.
Restorative justice empowers victims and offenders and provides them
with the opportunity to take action to restore one another to their pre-
offence state. It gives both parties the opportunity to reintegrate into
society and lower rates of stigmatisation for the offender. An important
point to note is that the offender or offenders at the beginning of the
restorative event are made aware that if they fail to co-operate with the
proceedings they may be subject to a more adversarial response from
the courts.

3.8. AFFECT THEORY IN RESTORATIVE PRACTICES

While Braithwaite’s theory of Reintegrative shaming1 has been at the fore-
front within the field of restorative justice, Sylvan Tomkins’ (1962) theory
provides a greater understanding of the benefits of the restorative conferen-
cing process for diverse groups. Tomkins’ Affect Theory is based on a
psychological theory of human affect. The term Affect which Tomkins uses
specifically refers to the biological portion of emotion or what he calls the
hard-wired, pre-programmed, genetically transmitted mechanisms that are
present in each human being.
These mechanisms when triggered precipitate a known pattern of bio-
logical events.
However, it is also acknowledged that in adults, the affective experience
is a result of both the innate mechanism and a complex system of nested
and interacting ideo-affective formations. Tomkins’ theory has been
analysed and presented in more detail through the work of Nathanson
(1992). Affect Theory is a very effective tool in explaining the success of the
scripted conference.
The conferencing process encourages free expression of affect, which is
the biological basis for emotion and feeling. The conference provides
an opportunity for participants to express true feelings while minimising
negative affects and maximising positive affects. According to Tomkins’
theory, this kind of environment is the ideal setting for healthy human
relationships.
56 THE SUSTAINABILITY OF RESTORATIVE JUSTICE

The restorative-based conference script utilises open-ended questions,

which allow for the expression of the nine basic affects that Tomkins identi-
fies as being present in every human being. These nine affects are listed as
Enjoyment-Joy, Interest-Excitement, Surprise-Startle, Shame-Humiliation,
Distress-Anguish, Disgust, Fear-Terror, Anger-Rage and ‘Dissmell’.2
Tomkins presents most of these affects as word pairs which name the least
and the most intensive expressions of that affect. When a conference
begins, participants are usually feeling disgust, dissmell (which originally
originated as a response to offensive odour), anger-rage, distress-anguish,
fear-terror and shame-humiliation.
These six negative affects are the most obvious when participants take
their seat in the circle and when the conference itself begins.
When participants respond to the scripted questions such as, ‘What
happened?’ ‘What have your thoughts been since?’ ‘How has this
affected/harmed/hurt you and others?’ and ‘What has been the hardest/
worst thing?’ they may express all or some of the negative affects and
feelings.
Anger, distress fear and shame are diminished throughout the sharing
process among participants. Their expression helps to reduce the intensity
of the affects, and may be applied with relevant cultural sensitivity.
As a restorative conference proceeds, participants experience a transition,
which is characterised by the neutral affect of surprise-startle (Nathanson,
1992). Victims, offenders and their supporters are usually surprised by what
people say during the conference and how much better they begin to feel as
a result of the expressions of affect by others. This may also reduce ethnic
tensions.
When the conference reaches the agreement phase, participants are
usually expressing positive affects of interest-excitement and enjoyment-
joy. This is particularly evident when participants are asked to respond to
the following scripted questions ‘What do you think/feel about what has
been said?’ ‘What do you think about what had happened here?’ ‘What
would you like to come out of the meeting?’
People recognise the affects seen on others’ faces and tend to respond to
the same affect. When one is angry, others become angry.
For instance, when one feels better and smiles, so do others. Tomkins
refers to this as ‘affective resonance’ or empathy. Through this ‘affective
resonance’ conference, participants make the emotional journey together,
feeling each other’s feelings as they move from anger, distress and shame to
interest and enjoyment.
Restorative Justice: Philosophy, Theory and Practice 57

For the conference, the prospective facilitator can take comfort and gain
confidence in understanding that Tomkins’ (1962) Affect Theory is reliably
demonstrated by the scripted conference process. Participants consistently
move from negative to positive feelings in the safe and structured environ-
ment created by the script (O’Connell, Wachtel, & Wachtel, 1999).
Nathanson’s (1992) Compass of Shame makes it very clear how people
from diverse backgrounds react to each other and express their shame.
Nathanson argues that people usually react with one or more of four
general patterns or ‘scripts’ which depict as directions on a compass: attack
other, attack self, withdrawal and avoidance. For example, when parents of
their offending children blame and criticise the school or the police officer,
when confronted with an offence, they demonstrate the attack other
response. These parents of offenders try to avoid shame by putting the
responsibility on others. This is the most common response to shame
demonstrated in today’s society. Another contemporary response is avoid-
ance through alcohol, drug abuse or thrill-seeking behaviour such as joy
riding in a stolen car.
However, several decades ago, the common responses to shame were
attack self and withdrawal. In attack self, the shamed individuals are self-
punishing and unreasonably hard on themselves. In withdrawal, the
shamed individuals hide as a result of being overwhelmed by the shame.
These responses to shame are normal; however, they are harmful and need
to be addressed (O’Connell et al., 1999).
Conferences can help people move beyond the compass of shame
through acknowledgement and expression of shame and through subse-
quent reintegration. Due to the fact that the restorative conference affirms
the intrinsic worth of the wrongdoer and condemns only the objectionable
behaviour, parents and offenders feel less threatened and more equipped to
acknowledge responsibility. O’Connell et al. (1999) also argue along with
other theorists such as Braithwaite (1989) and Daly (2003) that victims also
experience shame.
Victims may blame themselves for the incident, withdraw and hide their
feelings and sometimes distract themselves. Victim may also ‘lash out’ at
others close to them who are not responsible for the offence. In providing
an outlet for expressing feelings and moving beyond shame to resolution,
restitution and reintegration, the restorative conference is as important
to victims as it is to offenders (O’Connell et al., 1999). This process paves
the way for improved cultural understandings in place of mistrust and
misunderstandings from poorly informed cultural assumptions.
58 THE SUSTAINABILITY OF RESTORATIVE JUSTICE

3.9. THEORETICAL CRITIQUES OF RESTORATIVE

JUSTICE

The relationship between restorative justice and the wider criminal justice
system remains a central issue in implementing restorative practices
(Braithwaite, 2002; Dignan, 1999). As has been the case in England and
Wales, securing referrals has been an enduring problem and as a conse-
quence, many initiatives have remained on the boundaries of criminal
justice, both in terms of low referrals and the relatively minor nature of the
cases being referred (Miers et al., 2001).
This has often left restorative justice as a marginal, irregular and highly
localised activity (Dignan & Lowey, 2000). It also creates a situation
where programmes are reliant upon other criminal justice organisations
such as the police, prosecution service, courts or probation and the prison
service for appropriate referrals. Very often, these organisations may not
share a restorative justice philosophy; make have different priorities or
simply may not have a sufficient framework in place for such programmes
to work. The referral problem raises further difficulties for evaluation on
the effectiveness of restorative interventions as it introduces elements of
bias and self-selection (Crawford & Newburn, 2003; Hoyle & Young,
2002).
There is also the issue that programmes, which rely on voluntary choice
by offenders, will run the risk that those who choose to partake are those
who are most likely not to re-offend. A common experience of restorative
justice is that the criminal justice system presents structural, organisational
and cultural barriers to its implementation (Walgrave, 2002).
This issue is particularly relevant in the Irish case as at present there are
a number of structural, organisational and cultural barriers affecting the
successful implementation of the Children Act 2001 and restorative justice
provisions (Kilkelly, 2006a, 2007, 2008; Seymour, 2004; Walsh, 2005). This
is a key concern of the book and will be examined later, in detail, by the
primary analysis.
There is much debate regarding the merits of different models of restora-
tive justice. However, an understanding of the relationships between the
implementation of different models and the mechanics of the societies into
which they are being located is rather limited (Maxwell & Morris, 2002).
As a consequence of the experiences of restorative justice in other coun-
tries, the debate surrounding restorative values and principles is a contested
area with many commentators arguing for and against certain standards
and ethics (Restorative Justice Consortium, 1999).
Restorative Justice: Philosophy, Theory and Practice 59

Walgrave (2002) argues that for restorative justice to realise its full
potential it needs to transcend the focus on small crimes, juvenile and first
time offenders, to actualise its potential fully, a maximinalist version of
restorative justice must be developed, with the aim of providing restorative
outcomes to a maximum number of crimes in a maximum number of possible
situations and contexts, including those whose voluntary agreements are not
possible and coercion is needed (p. 34).
Hoyle and Young (2002) state that it is crucial, if restorative justice is to
fulfil its potential, that its virtues are not exaggerated and that the pitfalls
are not ignored. They argue that the greatest tension in restorative justice is
to be found in the question of whether it should or should not be integrated
into the mainstream state justice system, and if this is the case, to what
extent. Some such as Marshall (1999) make the case that restorative justice
programmes should be kept separate from mainstream criminal justice
because their aims and values are different.
Others, including Walgrave (1997, 2002), argue that restorative justice
should be an integral part of criminal justice. Any attempts to separate
restorative justice from the state is considered to be risky business as it
involves rejecting due process protections and other checks and balances
that accompany state-administered justice (Roche, 2004).
Both critics and advocates of restorative justice have equally expressed
concern regarding the limited scope for protecting the rights of defendants
in restorative processes (Kilkelly, 2007; Van Ness, 1999). Braithwaite has
also highlighted the point that restorative practices can trample rights
because of impoverished articulation of procedural safeguards (1999, p. 101).
According to Hoyle and Young (2002, p. 540) few would argue ‘that there
is no legitimate role for the state in restorative justice’.
What is of concern within the context of restorative processes and main-
stream criminal justice, however, are issues surrounding the facilitation of
conferences, legal advice, proportionality and the influence of state agendas
in restorative justice (Ball, 1999, 2004; Fionda, 1999; Gray, 2005; Jantzi,
2004; Roche, 2004).
In terms of who should facilitate conferences, there is concern, particu-
larly in the case of those led by the police, that it puts too much power into
their hands. The fear is that officers will investigate, arrest, judge, and pun-
ish someone without there being sufficient legal safeguards in place against
the abuse of power (Ashworth, 2001; Kilkelly, 2007). This has further impli-
cations in that the police play contradictory roles; insofar as it creates con-
flict between police and some young people, with the most obvious result
that the police will not be considered neutral facilitators (White, 1994).
60 THE SUSTAINABILITY OF RESTORATIVE JUSTICE

Cunneen (1997) raises a similar point in relation to the situation in

Australia, where research evidence has shown that it has been particularly
problematic for a police service, which is not seen by indigenous people as
legitimate, to try and bring about reintegrative shaming. In the case of
New Zealand, Maxwell and Morris (2002) have found that many families
have had negative experiences with social work led conferencing. They
argue that restorative justice values and those of social work are not recon-
cilable and where conferences have met restorative objectives and reflected
restorative values, this has happened despite it taking place in a welfare
setting, rather than because of it.
Restorative cautioning in Thames Valley and similarly in the Republic
of Ireland is police-led. All facilitators are trained to deliver conferences in
a fair way that requires them to follow a script, which charts a path
towards a restorative process that is genuine (Maxwell & Morris, 2002).
Facilitators are trained to be neutral and the purpose of the conference
is to empower the participants and not the police. However, according to
observational studies conducted by Young (2001) police facilitators utilised
their power in unacceptable ways (there is no research available in the con-
text of police led conferencing in the Republic of Ireland to support or
deny this).
Hoyle and Young (2002) argue that strategies must be devised to protect
against facilitators allowing agendas of the agencies within which they are
based to dominate the restorative process. Such strategies, they suggest,
should include monitoring by peers or supervisors to safeguard standards,
top up training and independent research into practice. Another possibility
is for legal advice and representations to be made available to participants
as a check and balance to unfairness or abuses of power. However, similar
to issues surrounding the facilitation of conferences, the availability of legal
advice is a contentious issue within restorative justice.
Most people concerned about police and powers of prosecution are in
favour of a legal system that promotes fairness and equality. However,
some restorative justice advocates such as Wright (1999) do not agree with
lawyers or legal representatives, having a role in the restorative justice
process or at the very least if there is involvement, that it is severely
restricted. The fear lies in the perception that lawyers will monopolise the
process, affect the offender taking responsibility for the offence and not be
in the interest of the parties (Crawford & Newburn, 2003).
Despite this, Hoyle and Young (2002) argue that if restorative justice is
to be used effectively to sentence people, then legal representation should
be encouraged; otherwise, if it’s not made subject to state scrutiny it will
Restorative Justice: Philosophy, Theory and Practice 61

remain outside the rule of law. In England and Wales and similarly in the
Republic of Ireland, there is no requirement for young people who are
offered a warning or reprimand to have access to legal advice (Crawford &
Newburn, 2002; Kilkelly, 2006b, 2007; O’Dwyer, 2006). Similarly,
offenders who are given referral orders by the courts will rarely be legally
represented with youth offender panels (Gelsthorpe & Morris, 2002).
Furthermore, support for offenders having legal representation during a
conference or other restorative process has been met with hostility (Fionda,
1999).
Ball (1999) in her article on the Crime and Disorder Act 1998 and the
Youth Justice and Criminal Evidence Act 1999 argues that the legislation is
not in compliance with the European Convention on Human Rights in
terms of supplying a lawyer at each stage of the criminal justice process,
with free legal assistance where necessary. Once again, there are links with
the Republic of Ireland as Kilkelly (2006a) argues that these concerns did
result in a change in attitude by youth-offending teams in terms of allowing
legal representatives to attend panel meetings. However, as Crawford and
Newburn (2002) argue, there is no legal aid available for panels so this
change has little impact in practice.
In addition to concerns regarding the facilitation of conferences and the
availability of legal representation, the issue of offender reparation arrange-
ments can have a disproportionate effect on restorative justice processes
(Hudson, 2003).
Just desert theories are concerned that the influence of victims or the
wider community could result in disproportionate reparation agreements
(Crawford & Newburn, 2003). For these theorists, it is important that the
punishment should always be proportionate to the offence, bearing in mind
the seriousness of the harm and responsibility (Von Hirsch, 1993).
Fears over such agreements might be ignored if restorative justice was
being used only for diverting minor cases from court, but the fact that
reparation is part of a referral order, the nature of it as a form sentencing
cannot be ignored (Hoyle & Young, 2002). Cavadino and Dignan (1998,
p. 351), as advocates of restorative justice, recognise the need for these
considerations to be taken into account when responding to an offence: the
protection of human rights of potential victims via crime reduction gives us
the ‘general justification’ for having a system of punishment; while the desir-
ability of conveying correct moral messages about relative wrongfulness of
different actions that affect human rights argues for a general principle
of proportionality in the amount of punishment imposed on individual
offenders’.
62 THE SUSTAINABILITY OF RESTORATIVE JUSTICE

However, they argue that proportionality does not need to be rigid and
can give way at times to other aims such as restoration of the victim. This
model allows for reparation agreement to be of a material and symbolic
nature and allows victims to play a role in the decision-making process
regarding reparation (Cavadino & Dignan, 1998). Morris and Maxwell
(2002) argue that proportionality may be better thought of as a form of
bounding mechanism that limits the scope of restorative outcomes through
maximum or upper limits.
However, others, such as Braithwaite and Petit (1990), hold the view
that restorative justice and proportionality are incompatible and they have
explicitly developed theories of reintegrative shaming and restorative justice
in opposition to the just deserts model. According to Hoyle and Young
(2002) and Crawford and Newburn (2003), restorative justice cannot be
judged by levels of proportionality alone but rather reflect core values of
restorative justice including mutual respect and empowerment. Offenders
should not be asked to take part in acts as part of reparation agreements
that degrade or cause stigma to them. The infamous example from
Canberra restorative conferencing of participants agreeing to wear a t-shirt
printed ‘I am a thief’ contradicts the fundamental principle and values of
restorative justice (Newburn, 2007).
The enabling role of the state, in which it provides legal frameworks for
restorative justice alternatives and structures to transfer a certain level of
responsibility to communities for addressing wrongdoing, constitutes one
of the most significant roles for restorative justice (Jantzi, 2004). The
state operates in a number of capacities including resourcer, implementer,
guarantor of quality practice and often time as offending party. The incor-
poration of restorative justice as part of mainstream criminal justice
attracts concerns about state control and the limited nature of community
involvement (Dignan, 2000).
There is nothing wrong with the state shaping the agenda of restorative
justice but in the context of local and individualised justice, the process
must be safe and accountable to protect the rights of all participants
(Hoyle & Young, 2002).
The issue of accountability is of particular significance in any process
that claims to change behaviour and to facilitate agreements between peo-
ple who in ordinary circumstances may not get on (Cook, 2006; Roche,
2004). In the context of the Republic of Ireland, the research findings later
in the book will specifically inform the debate and issues surrounding levels
of accountability within restorative justice programmes.
Restorative Justice: Philosophy, Theory and Practice 63

As has been alluded to in earlier sections, an institutionalised response

to criminal offences requires some level of input from criminal justice agen-
cies; otherwise, purely community-based schemes with no statutory basis
receive only a small amount of non-serious referrals (Hudson, 2003). If
there is not a public dimension to the response to offending, providing
legitimacy to the criminal justice process, it runs the risk of becoming
vigilantism more than criminal law (Hoyle & Young, 2002; Johnstone &
Van Ness, 2007). Furthermore, courts are required for offenders who do
not plead guilty and who do not wish to accept the outcome proposed by
other parties during a restorative intervention (Jantzi, 2004).
There remain considerable tensions in the relationship between restora-
tive justice and established systems of criminal justice. When restorative
justice is included into mainstream criminal justice, as is the case in many
countries, it must coincide with the general aims of the criminal justice
system. In general, the current managerialist thinking behind restorative
policies can be seen in the establishment of the Youth Justice Services and
Youth Offending teams, and these have been expressed in terms of a speed-
ing up of the process of youth justice, in order to reduce delays, the risk of
re-offending and to meet the needs of the victim (Ball, 1999; Fionda, 1999;
Gelsthorpe & Morris, 2002; Gray, 2005; Zernova, 2007).
However, as Dignan’s (2000) research demonstrates, the Youth Justice
Pilot Projects may have the opposite effect on victims and diminish the
prospects for them to receive direct reparation or take part in mediation.
This is an issue of huge concern to many advocates of restorative justice
who recognise that any attempt to bring together all parties affected by an
offence takes time and preparation (Crawford & Newburn, 2003; Lalor, de
Róiste, & Devlin, 2007; O’Dwyer, 2006). Often victims may not be
prepared to meet offenders until some time has elapsed. The fast tracking
of meetings at orders at this stage is not conducive to achieving a restora-
tive outcome for all parties involved (Field, 2007; Hudson, 2003).
Hoyle and Young (2002) argue that for the state to effectively administer
restorative justice processes there needs to be a balance between holding a
meeting, to ensure that people’s memories have not faded, but also to allow
adequate time for the co-ordinator to prepare all participants sufficiently.
If the emphasis remains on fast tracking, co-ordinators are under pressure
to ‘deliver justice’ as quickly as possible and the balance is put into
jeopardy (Fergusson, 2007).
According to various commentators, these tensions are unsurprising
in the context of the mix of criminal justice aims in England and Wales
64 THE SUSTAINABILITY OF RESTORATIVE JUSTICE

(Ball, 1999; Brown, 2005; Dignan, 1999; Fionda, 1999; Gelsthorpe & Morris,
2002). However, many would argue that it is better for restorative justice
advocates to seek to engage with and transform certain aspects of established
criminal justice, at least in the short term than to insist on an indepen-
dent and marginalised setting for restorative interventions (Crawford &
Newburn, 2003; Hoyle & Young, 2002; Hudson, 2003; Jantzi, 2004).
A number of difficulties at both the practical and theoretical level were
highlighted in reconciling tensions between models. However, it is argued
that the inherent differences and potential difficulties do not prevent them
from being reconciled. In short, it is contended that restorative justice and
criminal justice, while they may be competing paradigms, they are not as
some commentators suggest irreconcilable (von Hirsch, 2003; Walgrave,
2002; Zehr & Toews, 2004).
It is acknowledged, however, that given the level of conflict and debate
further integration of restorative forms of justice is far from being without
difficulties and complexities. If restorative justice is to be meaningful
and effective, there are a number of tensions that need to be resolved. As
Hudson (2003) has argued the key to reconciling the problems and possibi-
lities of restorative justice lies in creative consideration of its relationship to
formal law.
Problems of how to deal with recalcitrant offenders; how to ensure that restorative pro-
cedures are not seen as second class justice; how to balance expressive and instrumental
functions of justice; and above all, how to ensure that the voice of any party does not
become submerged in an emergent unitary consensus all turn on the relationship
between discursive processes of restorative approaches and role of formal law in mod-
ern societies in relation to defining relationships and allocating rights. (Hudson, 1998,
pp. 255 256).

Furthermore, as evaluations and research studies on the effectiveness of

restorative justice processes have shown there is a great need for further
research, particularly in identifying why restorative justice works in redu-
cing re-offending and providing long-term reintegrative results.
These issues stress the point that it is virtually impossible to understand
both the possibilities and limitations of restorative justice responses without
engaging in political, philosophical and practical debates regarding both
the meaning of restorative justice and the role of victims, offenders and
communities in the process (Brownlie, 2003; McAlinden, 2007). In the case
of state adoption of restorative justice as a response to young people and
crime, there is much to be learned and observed from taking stock of the
difficulties in defining restorative justice and its administration as part of
mainstream criminal justice.
Restorative Justice: Philosophy, Theory and Practice 65

Furthermore, this combined with the three key stages outlined by Van
Ness and Strong (1997/2002) of encounter, reparation and reintegration will
give focus and strength to the empirical research findings presented later in
the book on the emergence of restorative justice in the Republic of Ireland.

3.10. CHAPTER SUMMARY

This chapter begins with an overview of restorative justice. It set out the
definitions and principles of restorative justice. It discussed the myths and
realities of restorative justice from the perspective of Braithwaite and
Daly. The chapter further developed understanding of restorative justice by
introducing a practitioner’s perspective and using this to further critique
Braithwaite’s theory of Reintegrative shaming. This was achieved by
applying Tomkins’ Affect Theory and Nathanson’s Compass of Shame to
Braithwaite’s own understanding of Braithwaite’s Reintegrative shaming.
By critiquing Braithwaite’s understanding of Reintegrative shaming
through the practitioner’s perspective, the chapter provided a fuller under-
standing of the potential for restorative justice to provide a meaningful
framework of mediation in policy and practice.

NOTES

1. Braithwaite (2004) also acknowledges the significance of Tomkin’s Affect

Theory and Nathanson’s Compass of Shame in his article The Evolution of Restora-
tive Justice.
2. ‘Dissmell’ is a reflex that indicates disapproval.